*ROSE WARNE v. BILLING. Nov. 19.

[*316

It is no answer to an action for money paid at the request of the defendant, to plead that the money was paid in respect of losses on time bargains for mining shares which the plaintiff had made as broker for the defendant with third persons.

THIS was an action for money paid by the plaintiff for the defendant at his request, and for money found due on accounts stated.

Second plea, that the plaintiff was and is a mining share agent, and that the defendant retained and employed the plaintiff as such agent, after the passing and coming into operation of a certain act of parliament passed in the session of parliament held in the eighth and ninth years of her present Majesty, intituled "An act to amend the law concerning games and wagers" (8 & 9 Vict. 109), to make and enter into on behalf of the defendant, and the plaintiff then in pursuance thereof made and entered into for the defendant, with certain persons whose names were to the defendant unknown, certain contracts by way of gaming and wagering, contrary to the form of the said statute, that is to say, certain wagering contracts under the semblance of pretended sales to the defendant by such persons respecting the market-price and value of certain shares in a certain mine called the Wheal Harriet on certain days then to come, whereby, under pretence of contracts, the said plaintiff agreed with such persons, being the persons with whom the plaintiff so contracted for the defendant, that, if the price and value of the said shares should be lower on the said future day than on the respective days when the said wagering contracts were respectively made as in that plea was mentioned, he the defendant should receive from the said persons the amount of the difference between the value of the said shares respectively on the several days when the same wagering contracts were respectively made, and the market value on the *said future days; and, if the price and value thereof should be higher on [*317 the said future days than on the respective days when the said wagering contracts were respectively made as aforesaid, the defendant should pay to the said persons respectively the amount of the difference between the value thereof on the said days on which the said wagering contracts respectively were made as aforesaid and the market value thereof on the said future days: that it never was intended that any shares should be actually bought by the defendant or sold or delivered by such persons in pursuance of the said wagering contracts as aforesaid or otherwise, as he the plaintiff always well knew; but that such differences alone should be received or paid by the defendant as aforesaid that the money so paid by the plaintiff was paid in settling and discharging differences which had become payable to the said persons upon the said wagers and contracts so made by the plaintiff as such agent as in the plea aforesaid, he the plaintiff having as such mining share agent, and according to the custom among mining share agents, made the said wagers and contracts in his the plaintiff's own name as a principal, without disclosing the name of the said defendant and that the said accounts were stated by the defendant with the plaintiff of and concerning the said money so paid as aforesaid, and not otherwise.

The plaintiff demurred to this plea, the ground stated in the margin being, "that the said contracts are not illegal, and that the said plea does not aver that the defendant did not request the plaintiff to pay the money claimed." Joinder.

H. J. Hodgson, in support of the demurrer.(a)-The *plea

*318] attempts to raise a defence to this action for money paid, on the ground that the money was paid in respect of time-bargains, which are declared null and void by the 18th section of the 8 & 9 Vict. c. 109; but it does not traverse the allegation that the money was paid at the request of the defendant, and therefore the defendant must contend that the contracts in respect of which the money was paid were illegal. There is a material distinction between a contract which is simply void, and one which is declared to be illegal: Gye ". Felton, 4 Taunt. 876. It is not, therefore, any answer to this action to say that the contracts in respect of which the money was paid were void and incapable of being enforced as between the parties to them. In Jessopp v. Lutwyche, 10 Exch. 614, to a declaration for money paid and on accounts stated, the defendant pleaded that the causes of action accrued after the passing of the 8 & 9 Vict. c. 109, under and by virtue of certain contracts made between the plaintiff and the defendant by way of gaming upon the market price of shares; and it was held, on demurrer, that the plea was bad. Parke, B., in the course of the argument, said,-"The plea does not negative the fact of a third party having won the money, and that the *defendant request*319] ed the plaintiff to pay the amount over to him. The plea, therefore, is consistent with a state of facts which entitles the plaintiff to recover:" and in giving judgment he said: "It is consistent with the plea that the defendant requested the plaintiff to pay over the money for him to a third party, and that in fact it was so paid; in which case the defendant has no defence." In Fitch v. Jones, 5 Ellis & B. 238 (E. C. L. R. vol. 85), to an action on a promissory note the defendant pleaded that he made the note and delivered it to the endorser in payment of a bet on the amount of hop duty, and that the plaintiff took it without value. At the trial it was proved that the note was made and given to the endorser for the bet: and the judge left it to the jury to say whether there was value for the endorsement, telling them that the burthen lay on the defendant to prove that there was none. It was held that this was no misdirection; for that, though proof that a negotiable instrument was affected with fraud or illegality in the hands of a previous holder raises a presumption that he would endorse it away to an agent without value, and consequently calls on the plaintiff for proof that he gave value, the presumption does not arise when the previous holder merely held without consideration;

(a) The points marked for argument on the part of the plaintiff were as follows:"1. That the plea does not show that the said contracts alleged by the plea to have been made by the plaintiff as the defendant's agent with divers persons, were illegal as alleged:

"2. That the plea does not allege that it was agreed between the plaintiff and the defendant that shares should not be actually bought by the defendant, or sold or delivered by the said persons, in pursuance of the said contracts:

"3. That the plea admits that the money paid by the plaintiff was paid in settling and diseharging differences which had become payable to the said persons under the said contracts, but does not deny the allegation in the declaration that the same was paid by the plaintiff at the defendant's request."

and that a bet, though void, and therefore no consideration, was not illegal, so as to raise a presumption that the endorsement was without value. "It is clear," says Lord Campbell, "that, when there is illegality or fraud shown in a previous holder, a presumption that there is no consideration for the endorsement does arise; for, the person who is guilty of illegality or fraud, and knows that he cannot sue himself, is likely to hand over the instrument to some other person to sue for him. It is not properly that the burthen of proof as to there being consideration is shifted, but that the defendant, on whom the burthen of proof that there was no consideration lies, has by proving fraud or illegality in the former holder raised a primâ [*320 presumption that the plaintiff is agent for the holder, and has therefore, unless that presumption be rebutted, proved that there was no consideration. But no such presumption arises where there was in the former holder a mere want of consideration, without any illegality or fraud." [ERLE, C. J.-There is no illegality in betting on a race; but the winner cannot sue. Jessopp v. Lutwyche seems strongly in the plaintiff's favour; there is no distinction between the two cases, save that there the wagering contracts were made between the plaintiff and the defendant, and here between the plaintiff and third persons for the defendant. WILLIAMS, J.-This plea is hardly consistent with the suggestion in Jessopp y. Lutwyche, that the money may have been paid at the defendant's request after the transactions were over. ERLE, C. J.-Whether the request to pay was before or after the loss was ascertained, it must have the same obligatory force. Knight v. Cambers, 15 C. B. 562 (E. C. L. R. vol. 80), is exactly the same as Jessopp v. Lutwyche.(a) It was there held that it is no answer to an action for money paid by the plaintiff for the defendant's use, at his request, that the money was paid in respect of losses on wagering contracts made void by the 8 & 9 Vict. c. 109, s. 18. Maule, J., says: "Assuming the original contracts to have been void, there is nothing to prevent the plaintiff from recovering money afterwards paid by him at the defendant's request."] These authorities show that the plea is clearly bad.

Lopes, contrà.(b)-It may be conceded that a plea *that the [*321 money which is sought to be recovered was paid upon a contract which was merely void, would afford no answer if the money was paid at the defendant's request. The plea in the present case, however, is not like those in Knight v. Cambers and Jessopp v. Lutwyche: it states not merely that the money was won upon a void contract, but that it was so won to the knowledge of the plaintiff. The 18th section of the 8 & 9 Vict. c. 109 enacts that "all contracts or agreements, whether by parole or in writing, by way of gaming or wagering, shall be null and void:" and it goes on to enact "that no suit shall be brought or maintained in any court of law or equity for (a) Jessopp v. Lutwyche was decided on the 5th of December, 1854; Knight v. Cambers on the 23d of January, 1855. And see Knight v. Fitch, 15 C. B. 566 (E. C. L. R. vol. 80). (b) The points marked for argument on the part of the defendant were as follows:"1. That the money paid by the plaintiff on behalf of the defendant, being alleged in the second plea to have been paid on a contract which the plaintiff knew to be void, was money paid by the plaintiff in his own wrong:

"2. That this being substantially a suit to recover a sum of money alleged to be won upon a wager, is an action which cannot be brought or maintained."

recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." What is the subject of this action? Why, the money won by the third person upon the illegal bargains made for him by the plaintiff. If such an action as this may be maintained, the enactment of the gaming act may always be evaded. [ERLE, C. J.-It is quite clear that no action will lie to recover differences upon time-bargains. but the cases referred to are express that money paid at the request of the defendant, though for the purpose of paying money so won, may be recovered.] Neither in Jessopp v. Lutwyche not in Knight v. Cambers was there any allegation in the plea that the *plain*322] tiff was a party to the illegal contracts. [ERLE, C. J.-The

judgment in both cases is wholly beside that.]

Hodgson was not called upon to reply.

ERLE, C. J.-I am of opinion that our judgment upon this demurrer must be for the plaintiff. He sues the defendant for money which he alleges he paid for the defendant at his request. The answer the defendant sets up, is, that the money became due by reason of certain wagering contracts made by the plaintiff for the defendant with certain other persons since the passing of the 8 & 9 Vict. c. 109. Now, the law as to gaming contracts, is, that all such contracts are null and void, and no action can be maintained upon them. But they are not therefore illegal. The parties making them are not liable to any actions or to any penalties. Here, the plaintiff paid the differences according to the result, and at the defendant's request. I am clearly of opinion, that, if a man loses a wager, and gets another to pay the money for him, an action lies for the recovery of the money so paid. In Jessopp v. Lutwyche and Knight v. Cambers, the Court of Exchequer and this court both say that the plaintiff was entitled to judg ment on the ground that the money was alleged to have been paid at the request of the defendant, and that there was nothing to show that there was any illegality. Those cases are in point to show this to be a bad plea. I should incline to think, that, if one requests another to make a wagering contract on his account and pay the loss if loss happens, that would be a continuing request to pay until revoked. If the party were a broker who by the usage of the share-market was bound in all events to pay, it might be a question whether the principal could be allowed to rescind. It will be time enough, however, *323] *to decide that question whenever it shall arise. For the determination of the matter in hand, it is sufficient to say that there is nothing upon the face of this plea to exclude the notion of a subsequent request to pay.

WILLIAMS, J.-I am also of opinion that this is a bad plea. It is impossible to distinguish it upon any solid ground from the pleas which were held bad by the Court of Exchequer in Jessopp v. Lutwyche, 10 Exch. 614, and by this court in Knight v. Cambers, 15 C. B. 562 (E. C. L. R. vol. 80). In this plea certainly it is alleged that the money so paid by the plaintiff was paid in settling the differences which had become payable to the persons with whom the plaintiff made the wagering contracts, he the plaintiff having as such mining share agent, and according to the custom among mining share agents,

made the wagers in his own name as a principal, without disclosing the name of the defendant: but I do not think that at all differs the case from those to which I have alluded. It is quite consistent with this plea that the plaintiff, having made the contracts in his own name, and being by force of the statute able to resist payment of the money, might have been minded to resist but for the defendant's request to him to pay. There is nothing in the plea to negative the suggestion that the payment was made after the loss at the defendant's request; and, if so, the defendant is clearly liable to repay it.

KEATING, J.-I am of the same opinion. The plea is perfectly consistent with the plaintiff's having paid the money at the request of the defendant, though both parties knew at the time that the contracts in respect of which the payments were made could not be enforced. Judgment for the plaintiff.

*SHAND and Another v. JOHN GRANT and ROBERT

GRANT. Nov. 18.

[*324

Certain bales of cotton were consigned by merchants at Madras to London for the account of their correspondents, the plaintiffs, who were merchants at Liverpool, under bills of lading having in the margin, pursuant to the course of business at Madras, a note of the measurement and the amount of freight. On the ship's arrival, the plaintiffs' brokers sent the cotton to a wharf with a copy of the bills of lading, another copy of the bills of lading being forwarded to the plaintiffs. According to the ordinary practice, the wharfinger, on receiving the cotton, measured it, and sent a note of the measurement to the defendants, who were the ship's brokers (one of them also being the owner). The defendants as brokers made out a freight-note, adopting the measurement from the wharfinger's note, which in consequence of the swelling of the bales on the voyage was considerably more than the Madras measurement in the margin of the bills of lading. The freightnote so made out was sent by the defendants to the plaintiffs' brokers, who, assuming it to be correct, paid the amount, and received credit for it in their account with their principals; and the defendants settled the ship's accounts upon the supposition that all was right. The plaintiffs, on balancing their accounts with the Madras house at the end of the following year, discovered for the first time that they had overpaid the defendants to the extent of 887. 88. 3d., and brought an action to recover it back:

Held, that, the money having been paid under a mistake of fact, the plaintiffs were entitled to recover it back from the owner of the ship, but not as against the two defendants as ship's brokers, who had settled accounts with the owner in the bonâ fide belief that the payment had been rightly made.

THIS was an action brought by the plaintiffs, merchants at Liverpool, to recover back from the defendants, who were ship-brokers in London, a sum of 881. 8s. 3d. which was received by them in excess of freight in May, 1861, under the following circumstances:

The plaintiffs carried on business as merchants at Liverpool, under the name of Shand & Co., and had a house at Madras some of the partners in which were different from those composing the Liverpool house. In 1861, the Madras house shipped to London for account of the Liverpool house (the plaintiffs) a quantity of cotton on board the ship Comet, of which the defendant John Grant was the sole owner. The captain signed bills of lading at Madras which stated the cotton to be deliverable in London on payment of freight "at the rate of 21. 5s. per ton of 50 cubic feet, as per margin,"-each bill of lading containing a computation of the freight to be paid thereon, thus,-"100 bales, measuring 25 tons, 2 feet, at 21. 5s. per cubic foot 567. 7s. 5d.".